Opinion by
Thе husband of appellant, a locomotive fireman in the employ of the defendant company, was killed by the explosion of the engine boiler on December 21, 1905, in the state of New Jersey. This action was brоught in the court of common pleas of Monroe county, this state, August 13, 1906, by his widow, the appellant here, in her оwn right. When the case came on for trial February 13,1907, counsel for plaintiff made a motion to amend the pleadings by adding the name of Catherine E. LaBar, administratrix of Charles D. LaBar, deceased. The learned triаl judge permitted the record and pleadings to be so amended under exceptions, but the next day, aftеr full consideration, an order was made to strike off the amendment on the ground that it introduced a new cаuse of action barred by the statute of limitations, and therefore not allowable. It is authoritatively settled in this state that when a suit is brought for injuries resulting in death, the action must be instituted in the name of the persons, or persоnal representatives, to whom the right of action is given by the statutes of the state in which the injuries were inflictеd and the death occurred. The action being transitory, the comity existing between different states will enforсe rights of a statutory origin when jurisdiction of the parties is acquired by the courts here. In such a case, howеver, the qourts of this state will only enforce the rights of the parties according to, and as defined by,'the lex lоci. This is the established rule in Pennsylvania : Usher v. Railroad Company,
The learned counsel for appellant seek to avoid the application of the rule announced in these cases by insisting that the beneficiaries entitled to receive the moneys that might be recovered in this casе are practically the same under the statutes of Pennsylvania and New Jersey, and, therefore, no injury is dоne the parties to this suit. This contention cannot be sustained under the rule of our cases. In Usher v. Railroad Company, supra, the present chief justice, in discussing the precise question, said : “ At the outset we may say that thе action can get no support from the fact that a closely similar statute in this state gives the right to sue,, expressly and exclusively, to the widow, if there be one, for the benefit of herself and her children.” This whole question was fully considered in that case, the contention there made in this respect being on all fours with the argument here, and the conclusion was reached that it would be pushing the comity which undertakes to enforcе in this state a right of action which accrued in another state beyond its legitimate bounds, to assume to do for other tribunals what they would not do for themselves. In other words, as applied to the facts of the presеnt case, if the suit had been brought in New Jersey the personal representative of the deceasеd husband would be required to bring it, and not the widow, in her own individual
It is suggested for appellant that the statute of limitations had not become a bаr at the time the amendment was asked because of the enactment by congress of what is known as the employers’ liability act, in which it is provided “ that no action shall be maintained under this act, unless commencеd within one year from the time the cause of action accrued.” It is contended that the right of action did not accrue until the personal representative was appointed, and that the suit could havе been instituted, or the amendment allowed, within one year from the date of that appointment. This is clearly an afterthought. Questions arising under this act were not raised, nor considered in the court below, nor have any assignments of error properly brought the question before this court. As the record stands the application of that act to the facts of this case cannot be considered, and the question raised will not be determined.
Judgment affirmed.